PADMABATI PRADHAN Vs. COMMISSIONER OF POLICE

JUDGEMENT

(1.) This Writ Petition has been filed with a prayer to quash the order dated 03.09.2010 (Annexure-15) passed by O.P. No. 1-the Commissioner of Police, Bhubaneswar - Cuttack, At/PO/Dist: Khurda in Crl. M.C. No. 373/10 under Section 32 of the Orissa Urban Police Act, 2003 (for short "OUP Act") by which O.P. No. 1 directed the Petitioners to close down their Fabrication Unit within sixty days from the date of receipt of the impugned order and I.I.C., Lingaraj P.S. has been directed to ensure compliance of the impugned order.

(2.) The facts and circumstances of the case leading to the present Writ Petition in a nut shell are that the Petitioner-Padmabati Pradhan, W/o Bhubanananda Pradhan has been running a large size Fabrication Unit over Plot No. 1466 (part) and 396/1845, sub-plot No. A/1, Mouza: Rajarani, Unit-36, near Garage Chhak, Lewis Road, Bhubaneswar-2. The case of the private opp. parties is that the fabrication unit of the Petitioner is functioning in the residential zone causing annoyance, disturbance and discomfort etc. to the private Respondents residing in the vicinity. Earlier Addl. District Magistrate, Bhubaneswar heard their application and made a spot visit and measured the sound level produced by the Petitioner-Unit and found it to be higher than the permissible sound level of 55 dB for residential area. The Addl. District Magistrate, Bhubaneswar passed an interim order dated 24.06.2006 directing the Petitioner to reduce the sound level. On 08.09.2006 the said authority conducted a surprise visit to the spot to verify whether the interim order was carried out or not and found that the sound level produced was 88.2 dB. Finally, the Addl. District Magistrate, Bhubaneswar passed an order directing the Petitioner to restrict the sound level within the 55 dB. Being aggrieved, Petitioner moved this Court vide W.P.(C) No. 1492 of 2008 and this Court vide its order dated 15.09.2008 in the said writ petition upheld the order of the A.D.M. and directed the Petitioner to maintain the permissible noise level by using modern techniques or to shift the Fabrication Unit from the residential area. Since the Petitioner failed to comply with the order of this Court, the opp. parties filed the above Crl. Misc. Case No. 373/10 before the Commissioner of Police, Bhubaneswar-Cuttack (O.P. No. 1). Opp. Party No. 1 directed the I.I.C., Lingaraj PS to enquire into the allegations of the opp. parties and submit a report. In his report dated 20.05.2010, I.I.C., Lingaraj PS intimated that in obedience to the order of this Court the Petitioners were sensitized to reduce the noise level.O.P. No. 1 also issued notice to the Petitioner to show cause as to why appropriate order under O.U.P. Act would not be passed against her as she was causing annoyance, disturbance and discomfort in the locality. Pursuant to said show cause notice, the Petitioner filed the reply stating therein that in view of the specific order passed by this Court in W.P.(C) No. 1492 of 2008 there is no need to proceed with the instant proceeding and pursuant to the direction of this Court, the Petitioner has taken steps to reduce the noise level substantially. It was further stated that the residential area is disturbed more by the sound produced on NH-203 than the sound emitted from the Fabrication Unit. The O.P. No. 1 constituted a technical committee. The said Committee submitted its report. With the consent of the Petitioners and the opp. parties, a meeting was held with the scientists of State Pollution Control Board (for short 'the Board') and both the Petitioners and the opp. parties have attended the said meeting. O.P. No. 1 after hearing the learned Counsel for both the parties and analyzing the technical report as well as deliberation with the scientists of the Board came to the conclusion that the noise level of the residential area during operation of the Fabrication Unit is on the higher side and issued the above direction. Hence, this writ petition.

(3.) Mr. S.K. Pattnaik, learned Counsel appearing for the Petitioners challenges the impugned order of O.P. No. 1 on various grounds. Mr. Pattnaik, basically submits that the maximum noise level presently recorded was 63.6 dB which is below 65 dB. Therefore, no case for submitting complaint is made out. Power under Section 32 of the O.U.P. Act is not available to be exercised to enforce the order of the Addl. District Magistrate which was passed under the Rule 2(c) of the Noise Pollution (Regulation and Control) Rules, 2000 (for short, "the Rules, 2000") and the same has overriding effect on any other law in view of Section 24 of the Environmental Protection Act, 1986. Therefore, it is argued that the impugned order is without jurisdiction. O.P. No. 1 has not acted in accordance with the provisions of Rules, 2000. The unit of the Petitioner is a registered S.S.I. unit in Bhubaneswar which has been functioning from 1986. The Petitioner has also obtained the license and certificate for setting up of the Fabrication unit. The land of the Petitioners is located in a busy commercial area of Bhubaneswar town near Garage Chhak. There were other shop rooms in the said locality. O.P. Nos. 3 to 7 have no locus standi to initiate any proceeding seeking implementation of the order passed by the A.D.M., Bhubaneswar. One Sri Ganeswar Rout has a long standing civil dispute with the Petitioners. He is trying to harass the Petitioners by way of the complaint made before the A.D.M., Bhubaneswar in 2004 and filing the present Criminal Misc. Case No. 373 of 2010. The measurement of the noise level of the area has not been properly made by different authorities. The sound measurement report is not correct. O.P. No. 1 has not taken into consideration Rule 7 of the Rules, 2000. Mr. Pattnaik has submitted that the impugned order has been passed without jurisdiction and thus it is arbitrary, illegal, perverse and is in violation of the principles of natural justice. Mr. B.P. Tripathy, learned Counsel appearing for the private opposite parties supports the impugned order passed by opposite party No. 1 under Annexure-15.